Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson was an appeal brought before the Federal Court of Australia. The dispute revolved around the Federal Circuit Court of Australia's declaration that Heiko Constructions Pty Ltd contravened section 348 of the Fair Work Act 2009 (Cth). The appellant, Mr Tyson, alleged that his employer coerced him to engage in industrial activity, specifically becoming a member of the Construction, Forestry, Mining and Energy Union (CFMEU), an industrial association. The primary issue before the court was whether the appellant was denied procedural fairness and whether a contravention of section 348 of the Fair Work Act was proved. Additionally, the court needed to determine whether the object of the coercion could be characterised as a "workplace right."

The court found that there was procedural unfairness in the way the case was handled at the Federal Circuit Court. The primary judge had introduced section 348 of the Fair Work Act as a way of characterising the conduct as a contravention, but this was after the allegation which raised section 348 for consideration was struck out. The court concluded that it was not appropriate for the primary judge to introduce section 348 in this manner. Furthermore, the court held that the object of the coercion, ending union membership, could not be characterised as a "workplace right" under the Fair Work Act, but rather as an "industrial activity."

As a result of the procedural unfairness and the mischaracterisation of the object of coercion, the court allowed the appeal in part, set aside the orders made by the Federal Circuit Court, and declared that Heiko Constructions Pty Ltd contravened section 348 of the Fair Work Act. The matter was remitted to the Federal Circuit Court for a new trial to determine penalty and compensation. Additionally, the cross-appellant was granted leave to amend their notice of cross-appeal, and the cross-appeal was dismissed. The parties were given an opportunity to be heard on costs, both of the proceeding below and the costs of and incidental to both the appeal and the cross-appeal.